In 2011, as their homes at the Mitzpeh Kramim outpost in the West Bank were nearing completion, Yael and Doron Leshem wanted to move in quickly “before the High Court of Justice issues a temporary restraining order,” Doron Leshem says.
That same year, three Palestinians did indeed petition the court claiming that they were the rightful owners of the land on which the outpost had been built.
A restraining order, which Leshem had accurately anticipated, ordered a halt to construction at the outpost pending a ruling on the Palestinians’ petition, after the Israeli government acknowledged that the community had been built on privately owned Palestinian land that should not have been allocated for construction of the outpost.
The Leshems’ house looks like any suburban home. The exposed ground around it, Leshem says, is a result of the order halting construction work in Mitzpeh Kramim. “I’ve been barred for almost a decade from even planting a tree here,” he says. “I haven’t had a garden here.”
Residents of the outpost say the court order had prevented Mitzpeh Kramim from developing. The synagogue has in the meantime also served as an event hall. The residents have had to drive their children to school in other communities and many have even chosen to move out.
But the Leshems decided about two years ago to build an access path to their house. The Jerusalem District Court ruled at the time that Mitzpeh Kramim could pass legal hurdles via the principle of market regulation, which permits outposts build on private land to remain in place if the land was allotted in good faith. “We were emboldened,” Leshem says.
But this past week, the High Court threw cold water on the district court’s decision and ordered the land to be evacuated within three years. The justices rejected the state’s claim it had acted in good faith and determined that it had alloted the land registered as private Palestinian land by turning a blind eye to that fact.
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Forty-five families live at Mitzpeh Kramim, 16 of them in permanent homes and another 29 in mobile homes. The ruling does not apply to 12 of the buildings but the residents say that the evacuation of the other houses would mean the end of the outpost.
Residents of Mitzpeh Kramim view the decision, which has outraged Israel’s right wing, as a result of a clear political bias. “In the end the tables wll turn on the high court,” Leshem says. “They are living on another planet and isolated from the people. When we ask how you redress an injustice with another injustice, they tell us that the Palestinian is the native. But where are we in the picture? Are we robbers? Do we not deserve any justice?”
The Leshems, who have five children, moved to Mitzpeh Kramim from Jerusalem in 2007 and initially lived in an expanded mobile home. Yael Leshem is an art therapist. Doron had been the director general of the West Bank settlement of Barkan and the secretary of Mitzpeh Kramim and is currently employed by an initiative to encourage immigration to Israel. He had been a student in the Gush Katif bloc of settlements in Gaza says the decision to move to the outpost had been born of the 2005 disengagement, based on an understanding that the settlement project needed reinforcement.
“Coming to live here is an ideological decision,” he says. “Other than a few self-employed people, you must commute back every day back and forth to work. It’s not easy.”
On Friday, the morning after the High Court decision, a small birthday party was held in a yard at the outpost. Sitting among the party balloons, the celebrants tried to forget about the news. “We prefer to be happy and to make something out of life,” one woman said, “but we’re very sad.”
The residents of Mitzpeh Kramim sought to point out that, contrary to the prevailing impression, they hadn’t decided of their own accord to come and grab the first hilltop they could in the dead of night. One of the first residents was Shiri Gur Aryeh, a high school teacher in the settlement of Ma’aleh Efraim. She and her husband, Kobi, grew up in the settlement of Kokhav Hashahar, which is adjacent to Mitzpeh Kramim, just a few hundred meters away. Officially the outpost is considered a neighborhood of Kokhav Hashahar and access to it is through the settlement.
“When we got married, we lived for two years in Eli,” Gur Aryeh said, referring to another West Bank settlement. “And we returned in order to establish Mitzpeh Kramim,“ Gur Aryeh says of the outpost’s establishment in 1999. “Kokhav Hashahar wanted to encourage the next generation to return. They brought us together and asked us what had to be done to make it happen.” That, she says, is how the decision was made to establish the outpost.
Initially it was established on another hilltop, south of Kokhav Hashahar. The Gur Aryehs lived in a mobile home there for several months until the Yesha Council of Jewish settlements came to an agreement with the prime minister at the time, Ehud Barak, that it would be moved to within the boundaries of Kokhav Hashahar. The planning process was halted after it turned out that the site was inside a military shooting zone., but the settlers started to move mobile homes to the current site anyway.
The head of the army’s Central Command at that time, Moshe Ya’alon, who later served as defense minister and currently heads the Yesh Atid-Telem faction in the Knesset, testifed in district court that he had personally escorted the first settlers who moved to the site, although it was done without the formal approval of the planning commission.
A few families live at the former site of the outpost, at a place called Ma’aleh Shlomo. “When we moved, of course, we checked into what was involved, but for the most part, we let the state do the work,” Gur Aryeh says.
The Gur Aryeh family lives in a permanent home in Mitzpeh Kramim that was completed about two years before the petition was filed against the outpost.
Kobi Gur Aryeh has a vineyard and an olive grove. When his wife speaks about him and their childrens’ connection to the area, she quotes a line from the Bnei Akiva religious Zionist youth movement song, “our feet are in clumps of earth.” The family’s stone house is in the first row of the outpost’s homes. From a gazebo at the edge of the family’s yard, one can see Givat Habaladim, an outpost that has gained notoriety for the extremism of its residents. You can also see a place that settlers called Har Hakuba, which in Arabic is known as Kubat an-Najmah, (Dome of the Stars).
On a clear day Tzurit Gur Aryeh, one of the couple’s offspring, says the neighboring Kingdom of Jordan is also visible.
Shiri Gur Aryeh says the Israeli government’s acknowledgement that Mitzpeh Kramim was built on privately owned Palestinian land surprised them at the utpost. “We were in shock. The State of Israel moved us here and again someone signed off on this without any authorization?”
But she’s not angry with the state. “There are various officials in the country, and there are those who try to help,” she says. Standing out among the helpers, the residents say, are Yamina party leaders Naftali Bennett and Ayelet Shaked, who until recently had been defense minister and justice minister respectively. “Our anger is directed at the justices of the High Court from hose standpoint, this is a case about land. They are looking at things from a technical rather than human level. People make mistakes, but we are the ones who have to pay the price and not those who erred.”
She says the residents of the outpost have not yet come up with a plan for how to handle last week’s ruling, court decision but they intend to enlist support from the Knesset and the general public to cancel the decision. They say it’s not the prospect of moving that disturbs them.
“I am sure there will be officials who will handle it. I am more concerned about the impact it will have on our children and how they will feel about the country,” Shiri Gur Aryeh says. Her daughter Tzurit adds: “I’m not the kind to get angry, but when I heard about the court ruling, I felt like overturning something.”
Residents of the outpost say that the Palestinians who petitioned the court have not proven that they are the actual owners of the land, although at this stage there is no arguing that this is privately-owned land. Senior legal sources familiar with the case say the petitioners are either heirs or buyers whose purchases haven’t been officially registered.
“When we came here, the hill was all full of rocks,” Shiri Gur Aryeh says. “The feeling is that this petition is the work of left-wing organizations. We saw no Palestinians coming around here.”
In effect, Palestinians have been barred from reaching the area of the outpost since 1975 under a military order issued at that time. According to a document from that period, there was agricultural work taking place in the area until that time.
Evicting them would not be of use to anyone the outpost’s residents say. “If the state made an error, then that can be resolved in a logical way,” Doron Leshem says, alluding to marketplace compensation mechanisms. “But for the Palestinians, it was a matter of principle,” he adds.
Residents point to the evacuation of homes in 2017 in the Amona outpost that were found to have been built on private Palestinian land as another example of what they see as a “pointless eviction, “ saying that Palestinians have not returned to cultivate the land. In actuality, following that evacuation, a military order was issued barring anyone, including the Palestinian owners, from entering the area. Last year, the owners and the Israeli human rights group Yesh Din challenged the order, which was again extended in December.
“Are they going to come and cultivate land sitting 200 meters from Kokhav Hashahar?”says Mitzpeh Kramim resident Shai Maimon, referring to the petitioners against Mitzpeh Kramim. “This decision is divorced from reality,” he says.
Maimon, the manger of a Jerusalem startup and father of five, moved to a mobile home in Mitzpeh Kramim eight years ago from the settlement of Talmon seeking a place with a sense of community.
He said the residents had been pinning their homes on a favorable ruling even after the high court struck down Knesset legislation that sought to allow residents to remain in cases in which their homes were built in good faith on land later found to be privately owned by Palestinians. Maimon says that Supreme Court President Esther Hayut and Justice Hanan Melcer were on the panel of judges in that case, as well as in Thursday’s ruling. “There was a statement made that while the law was disproportionate, there was a proportionate solution that would permit legalizing houses in communities in certain cases,” Maimon says. “The justices lied to the public. They said it would be possible to legalize [homes] through market [good faith] doctrine and they’re not doing it.”
In Maimon’s eyes, there is no more appropriate case for the application of the market doctrine than that of Mitzpeh Kramim. “They made an agreement with us. They chose the site and told us to come and settle here. We need to remember that the state’s position has also changed. When [Yehuda] Weinstein was attorney general, they wanted to evict us, but over time it turned into legalization,” he says. Now the residents expect the government to accept responsibility for the mistake and find a way to legalize the outpost, Maimon says.
Ravit Marmelstein, the principal of a school in the settlement of Psagot for students who have dropped out of school, lives in Mitzpeh Kramim with her husband and nine children in two adjoining mobile homes. Asked what they were left with after the 2011 temporary restraining order was issued, she replied she had sometimes asked herself the same question.
“But faith in the justice of the cause and the fact that we did not come here on our own made us believe that some kind of understanding would be reached and it would be legalized.” She believes that the government allocated the land to Mitzpeh Kramim in good faith, but is disappointed in the state’s subsequent conduct.
“I’m angry that over all these years, they didn’t find a constitutional approach for legalization. I feel as if the state hasn’t taken any responsibility, and we are the ones paying the price.”
Asked what she plans to do over the next three years, the period that the court has provided before the deadline for evacuating the outpost, she replied, half in jest, “Cry.”
“It’s a tough question. I’m on the secretariat of [Mitzpeh Kramim], and our main fear is that, in the process, the community will break apart. There’s also the question of what we are doing as a family. Throwing eight years in the garbage? I didn’t sleep all night. It’s tearing me apart.”
Like other residents, Marmelstein says she has no intention to leave. “I have no problem waiting another three years, as long as we know that in the end, they will find a way to legalize,” she said. “In any event, we are not looking to budge from here.”
Doron Leshem is convinced that even if the eviction proceeds, that wouldn’t be the end of the matter. “We wanted 100 families in Mitzpeh Kramim. If they evict us and we move us to a recognized community, there would be 300. We would be the victors.”